Lawsuit Against Alabama for Boat Ban

Lakes Online

A lawsuit was filed in Montgomery Monday that challenges the new law passed by legislators banning the use of large boats on three Alabama lakes (Weiss, Martin and Wedowee).

“In the 40 years I’ve been in the boat business, I have never considered suing anyone,” said Robert Nelems, owner of Nelems Marine Inc. in Jasper, one of the plaintiffs in the lawsuit filed against the state. “My daddy always said you never need to sue anybody because right always prevails, but my daddy never had to deal with wealthy corporations with unlimited funds who have enough power with lobbyists in Montgomery to destroy your business. It’s been proven that in Alabama, money can make the law in Montgomery, but money can’t buy a judge.”

The plaintiffs in the civil case reside in various Alabama counties, including Autauga, Elmore, Tallapoosa and Walker counties.

“I believe a fair judge with an open mind will see that the new law is unfair, it is wrong and will not stand the court challenge we have filed,” Nelems said Friday. “I trust the integrity of the court.”

The legislation initially listed as many as 11 Alabama lakes, including Logan Martin Lake, and would prohibit houseboats and other large vessels capable of speeds in excess of 60 mph from operating on lake impoundments. The list of lakes was eventually whittled down to three, Weiss, Martin and Harris, after lawmakers were flooded with calls in opposition to the proposed legislation.

The final bill did pass for those three lakes only.

The lawsuit names the State of Alabama Department of Conservation and Natural Resources; Barnett Lawley, commissioner of the Alabama Department of Conservation and National Resources in his official capacity; and M.N. “Corkey” Pugh, in his official capacity as director, Marine Police Division Alabama Department of Conservation and Natural Resources as defendants in the lawsuit.

Northington, who helped spearhead efforts to fight the new big-boat ban law, said the lawsuit surfaced from a grassroots effort to raise money to fight what he and supporters call “an unjust law”.

“We received $25 to $5,000 from people across the U.S. to fight this,” Northington said, adding that donations came from as far away as California.

He said legal expenses are high, and the group is still raising money to pay for legal fees to fight the ban.

The lawsuit filed Thursday contends House Bill 756 or Act 398, which was passed by the Senate April 5 and signed into law by Alabama Gov. Bob Riley on April 14, violates equal protection laws as provided by the 14th Amendment to the Constitution of the United States by prohibiting the operation of certain large boats by plaintiffs and other boaters on Lake Harris, also known as Lake Wedowee, Lake Martin and Weiss Lake, but not for other similar boaters on other Alabama lakes.

It alleges violation of civil rights guaranteed by a series of amendments to the U.S. Constitution. The lawsuit also alleges Act 398 can vary in interpretations and should be voided for its vagueness.

Plaintiffs maintain that Harris, Martin and Weiss Lakes are power generation impoundments created and operated by virtue of the Federal Energy Regulatory Act.

“The federal statutory and regulatory scheme surrounding power generation impoundments preempts any attempt by the State of Alabama to regulate in that area of the law by the passage and enforcement of Act 398,” the lawsuit states.

The lawsuit seeks a preliminary injunction hearing before Oct. 1, when plaintiffs are prohibited by Act 398 from possessing and using certain recreational vessels they own and have routinely used.

The plaintiffs’ attorney is expected to take depositions from Lawley and Pugh Aug. 8, and the plaintiffs have also requested numerous documents from the Alabama Department of Conservation and Natural Resources.

Called “stealth legislation” by some critics because the general public was not aware of the proposed big boat ban legislation until media reports alerted them, the bill was met with opposition as provisions began to surface. By that time, the proposed legislation had already passed in committees and was on the House and Senate floor calendars ready for a vote to become law.

The compromise bill affecting only three lakes was eventually passed by the House and approved by the Senate before it was signed by Riley in April.

Sen. Gerald Dail, D-Lineville, who first introduced the legislation in the Senate along with the House companion bill introduced by Rep. Richard Laird, D-Roanoke, said all along the legislation was prompted by Georgia resort developers wanting assurances that houseboats were banned from Lake Harris in his district before they would move ahead with any further plans to build a multimillion-dollar resort community there.

There was already a “no-houseboat” policy for Lake Harris, but there was no law backing up that policy, Alabama Power Company officials say.

Alabama Power has 10,000 acres on Lake Harris, 3,500 acres of which could be developed, and officials admit they were in talks about a possible land deal.

However, Alabama Power maintained it did not “drive” the legislation and only provided “input,” citing safety, health and lake overcrowding concerns on state lakes.

Pugh said Friday, the new law, as he understands it, will not go into effect until Oct. 1.

“Our officers have not made any arrests under the new law,” he said.

Pugh said he had not seen the lawsuit and could not comment specifically about it.